Citation Nr: 20047575 Decision Date: 07/16/20 Archive Date: 07/16/20 DOCKET NO. 16-35 725A DATE: July 16, 2020 ORDER An initial rating of 50 percent, the maximum schedular rating, for service-connected migraine headaches is granted. FINDING OF FACT The Veteran’s migraine headaches are more nearly manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for a 50 percent rating for service-connected migraine headaches have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 2004 to March 2005, and from November 2007 to October 2008. This appeal comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In March 2019, the appellant testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. Entitlement to an initial rating in excess of 30 percent for service-connected migraine headaches. The Veteran, and his representative, contends that he is entitled to a higher rating because his headaches are very frequent and severe. Resolving reasonable doubt in favor of the Veteran, the Board concludes that the evidence of record supports a 50 percent rating, the maximum rating, for service-connected migraine headaches; his migraine headaches are more nearly manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8100. Migraine headaches are rated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8100, for migraine. Under Diagnostic Code 8100, a noncompensable rating is warranted for migraines with less frequent attacks. A 10 percent rating is warranted for migraines with characteristic prostrating attacks averaging one in 2 months over the last several months. A 30 percent rating is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months. A 50 percent rating is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. A 50 percent rating is the highest schedular rating under Diagnostic Code 8100. The rating criteria of Diagnostic Code 8100 are considered successive, meaning that a claimant cannot fulfill the criteria of the higher rating without fulfilling those of the next lower rating. Johnson v. Wilkie, 30 Vet. App. 245, 252 (2018). This renders 38 C.F.R. §§ 4.7 and 4.21 inapplicable. Id. The phrase “characteristic prostrating attacks” is used in the criteria corresponding to 10 percent and 30 percent ratings under Diagnostic Code 8100 to describe the nature and severity of migraines, but it is not defined in the regulation. Pursuant to Dorland’s Illustrated Medical Dictionary 1531 (32d ed. 2012), prostration is defined as “extreme exhaustion or powerlessness.” Thus, the phrase “characteristic prostrating attacks” is understood to describe migraine attacks that typically produce extreme exhaustion or powerlessness. The rating criteria for a 50 percent rating contains several undefined phrases. The descriptive phrase “very frequent” connotes a frequency at least greater than once a month, as is required by the rating criteria corresponding to a lesser 30 percent rating. Johnson, 30 Vet. App. at 253. The phrase “completely prostrating” generally means that the migraines attack must render the veteran entirely powerless. Id. The completely prostrating attacks must also be “prolonged,” which is defined as “to lengthen in time: extend duration: draw out: continue, protract.” Id. (internal citation omitted). Lastly, the 50 percent rating criteria requires that the very frequent completely prostrating and prolonged attacks be “productive of severe economic inadaptability.” Productive can be read as having either the meaning of “producing” or “capable of producing,” and, with regard to severe economic inadaptability, nothing in Diagnostic Code 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent rating. Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004). Lastly, in rating headaches or migraines under Diagnostic Code 8100, the Board may not consider the ameliorative effects of medication. See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). Treatment records, throughout the appeal period, show complaints of frequent migraine headaches with sensitivity to light and sound. See, e.g., CAPRI (March 2015) & CAPRI (April 2015). VA examination report, dated in September 2014, reflects the Veteran as having three to four headaches a week and that his headaches are aborted if he takes Excedrin within one hour of noticing symptoms. The examiner additionally noted (1) that once a month, headaches are severe and prostrating, (1) the use of Imitrex when headaches are severe, and (3) that the Veteran did not experience very prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability. In regard to functional impact, the examiner noted that the Veteran’s headache condition impacted his ability to work. In this instance, the examiner noted that (1) the Veteran owned a pool business from 2009 to 2011 and that he worked 60 hours a week, (2) if severe migraines occurred while he was working outside in the sun he would not be able to finish the job or drive home, (3) he sold his business, (4) he now owns a mechanic shop in his backyard and his schedule is flexible, (5) he is typically able to work through the headaches, but about once a month when he gets severe prostrating headaches, he must stay in a dark, quiet room and/or sleep for several hours, and (6) he stays physically active and exercises by working out at the gym three times a week. At his Board Hearing, the Veteran testified to experiencing headaches one to two times a week. See Hearing Transcript at 9 (March 2019). He further stated that they would last several hours, and to get relief, he would have to go to a dark room with no lights and go to sleep. Moreover, he stated that he never had a migraine that he could work through, walk around, or even be outside at all. The Veteran’s spouse, on the other hand, testified that when the Veteran feels the onset of a migraine, he would have to come inside and go to a dark room, put a towel underneath the door (to stop light from coming in), hydrate, take prescription medication, and then go to sleep. She additionally stated that when these episodes occurred, she would take the children out of the house to eliminate noise. Id. at 12-13. Next, lay statements, submitted by friends and family, similarly, reveal that the Veteran’s migraine headaches are manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. For instance, lay statement, dated in April 2014, submitted by a previous business partner provides, “[the Veteran] would get severe migraines on almost a daily basis and the amount of work he was able to do was drastically reduced compared to the time before he was deployed.” Next, lay statement, dated in April 2014, from the Veteran’s mother provides, “[h]e currently is unable to perform routine repairs due to the frequency of his migraines [and] is unable to attend some family functions when he has a migraine, as his vision is affected and he cannot drive.” Lastly, lay statement, dated in March 2019, submitted by the Veteran’s spouse provides, “[w]hen [the Veteran] gets a migraine we seclude him into a dark room with no light coming in by using blackout curtains and [turning the] lights off.” The lay statement additionally states that the Veteran “needs to lay down until the migraine subsides, which can last [five plus] hours or until the following day.” In consideration of the above, the Board finds the Veteran’s migraine headaches are more nearly manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The evidence demonstrates that during a migraine, the Veteran experienced sensitivity to light and sound, and has reported that during a headache episode, ranging in several to numerous hours, he must isolate himself in a dark room (away from any light) and try to go to sleep. Moreover, despite finding that the Veteran’s headaches were not productive of severe economic inadaptability, the Board observes, the September 2014 VA examiner noted severe limitations on the Veteran’s occupational functional ability that, in essence, reveal headache episodes that are productive of severe economic inadaptability. The Veteran is competent to report what he feels, such as the frequency and severity of headache-related pain. The lay witnesses, in addition, are competent to report observable behavior or symptomology, such as the Veteran’s behavior prior, during, or after a headache episode, to include functional impact during such episode. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Therefore, in consideration of the above evidence, the Board finds the lay statements, to include the Veteran and his spouse’s sworn testimony, competent and credible as they are consistent with other evidence of record. See Caluza v. Brown, 7 Vet. App. 498 (1995), aff’d, 78 F.3d 604 (Fed Cir. 1996) (holding that, in weighing credibility of lay evidence VA may consider such elements as interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, desire for monetary gain, and demeanor of the witness). In this instance, the Veteran has competently and credibly reported headache symptomology, such as severe pain and discomfort, which is not relieved until isolation and falling asleep in a dark and quiet room. Given these competent and credible statements, including those indicating that the headaches are so severe that the Veteran cannot function, the Board finds that the evidence is at least evenly balanced as to whether the symptoms of the Veteran’s headaches more nearly approximate very frequent completely prostrating attacks capable of producing severe economic inadaptability. Accordingly, the Board finds the Veteran’s migraine headaches more nearly correspond with the 50 percent disability rating for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. As 50 percent is the highest rating for migraines headaches under Diagnostic Code 8100, this grant represents a complete grant of this appeal. 38 C.F.R. § 4.124a. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Griffey, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.